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tv   Discussion Focuses on Supreme Court Nominee Neil Gorsuch  CSPAN  March 4, 2017 2:35pm-4:08pm EST

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incident with that film. ,> there were other videos nothing in the record. evidence ander surveillance videos taken into account in the investigation. >> let me ask one other question . are there examples in the past 10 years of the congress of the united states passing special laws to compensate victims for incidents somewhat like this where the u.s. accidentally transgressed on the rights of foreigners? wouldon't know, but that be the solution. this is something that should be up to congress. guess you could say that with respect to bivens. >> this court has look to the whether congress is the right body to decide, and clear we think it is.
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not to mention the deeply rooted presumption against .xtraterritoriality the behavior of our law enforcement agents abroad sends a powerful message about the rule of law to individuals everywhere come and you are asking us to make that distinction that if a law andrcement agent shoots kills somebody who is on one , although therder , thect is identical officer is standing in the same place. what kind of message that will send. the rule of law can be in
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force and demonstrated in other ways. by discipline -- >> it doesn't happen. we know that. >> we cited this in our brief, the border patrol has changed its training, given detailed instruction on the use of deadly force, and this goes to the rule of law about investigations after -- >> if the border control agent stood where he stood and took the shot where he did in the only difference was that the teenager was an american citizen, is there -- there would think be, but that is a different question than whether an alien should have a course of action 1983 and congresses action. >> thank you council. you have a minute left. >> to justice ginsburg's hypothetical, boast of my
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friends say there is a bivens claim for the boy to shut next to the officer. take that position into this hypothetical. .he officer shoots the gun the bullet leaves the gun. there is constitutional consequences of the bullet travels to the border. if there is a void between the gun and sergio and that bullet and theough that void same bullet hits and sergio, their position is that there is a bivens claim and a constitutional constraint as to the first boy who dies, but not .he second boy who dies the conduct occurring in the united states, 100% of it, if it gives a normal standard bivens claim to the boy shot with the bullet and does not give one to as to justiceez, kennedy's question on the fourth it is at coming
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functional test. it is a question of judgment, not compulsion. it has nothing to do with the application of the seizure by shooting someone dead to the search inside the property. the fightfirmed that pattern of someone killed is enough to provide limited constraints through thank you very much. >> thank you, counsel. the case is submitted. >> a decision in the case we just heard is expected before june. in a few minutes, the confirmation process and for president trump's nominee to the high court, neil gorsuch. tonight here on c-span, former trump presidential campaign manager corey lewandowski on the 2016 campaign
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, including the use of polls. here's a preview. >> we looked at a couple of different factors coming in to the race. early voting was always an early indicator. --rida was to mulch was tumultuous for us. donald trump ended up with 33% of the hispanic vote in florida, good for republicans. but in florida, we thought we could be in trouble in florida, absolute battleground state for us. north carolina, when a number said is we are going down 225,000 votes on election day. to put that into perspective, mitt romney was down 300,000 votes. we felt pretty good in north carolina. our numbers started change rapidly in pennsylvania. we knew we would win ohio, iowa,
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and the clinton campaign knew they could not win either of those states. wisconsin, pennsylvania, michigan, they were very concerned about. the reason being is that it them for granted. it wasn't until the last 10 days, the last seven days come the last weekend. i am a new hampshire guy. i wanted the last rally of the campaign to be here. they had been very good to us. we how to rally their, a snowstorm the night before the 8:00 rally. an they said you can't have it at 8:00. i know this president will not stop at 8:00. it will be like a midnight rally , like mitt romney did four years ago. please don't make this less thought because i know he will have another one. big show, massive blowout, and
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then to michigan. he went to michigan and it was like this come up front together last-minute come of the campaign. he landed back at laguardia at 3:00 in the morning because he wanted to stop in michigan. we knew if we could just make a turnout model, the people had not been engaged in the election progress, fed up with washington been liedey have to for 30 years. hillary clinton did not connect with the african-american. with women, donald trump one with women. it is amazing. hillary clinton was the first female to hold the title. on withtrump w evangelicals across the board. one said he lost in the day he announced.
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i was at cnn. >> more from corey lewandowski tonight at 8:00 eastern here on c-span. the confirmation hearing for supreme court nominee neil , and isbegins march 20 expected last 3-4 days before the senate judiciary committee. we will have a live on c-span networks with coverage in prime time. now i discussion on the road , the for neil gorsuch american constitution society, the federalist society, and the georgetown university supreme court law center institute hosted this 90 minute discussion.
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>> we will get started as folks continue to wander in from class. i am the director of the institute here at georgetown and on behalf of of the executive director and the assistant director, we are happy to welcome all of you here to what promises to be a very interesting discussion of the pending nomination to the u.s. supreme court. i will introduce the moderator, who is a supreme court correspondent, adam liptak. the provider -- purveyor of the genuine news. he will introduce other panelists. take it away. thank you all for being here. mr. liptak: thank you. so i see in the flyer that we promised you an engaging roundtable of experts.
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i'm going to introduce the panelists and then talk a little bit about the formatting and get under way. so to my right is mr. dvoretzky, from jones day where he wanders the empty hallways. looking for his colleagues that have joined the trump administration. he's a graduate of law school and a former law clerk to justice scalia. and to his right is caroline fredrickson, president of the american constitution society. she's a graduate of columbia law school and works at the aclu. and then christine lucias who is a graduate of georgetown law and has served most recently, yet it -- yay! as chief counsel of the the judiciary committee working for senator patrick lahey in a
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variety of counsel roles and in that capacity, we will quiz her, she was actively involved in the confirmation processes for half of the current occupants of the court. and it is an even number. next down the line is ed whelan, who is president of the ethics and public policy center, a must read blogger at the national review onlines blog. he's a graduate of harvard law school and a former law clerk to justice scalia. and finally the president of the constitutional accountability center, elizabeth wydra. what i'd like to do here is not have the traditional kind of panel where people give little ten-minute speeches, but to have more of it interactive conversation. it's a lively topic. and i have urged people not to wait for questions from me, if they hear something, to react
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and jump in. i think we will have three little chapters, one looking at earlier hearings and ask whether that casts any kind of shadow over the gorsuch nomination, or whether we should consign that to history. a more substantial piece of the discussion about judge gorsuch himself, and then maybe look forward to what the court would look like if judge gorsuch is confirmed and what other vacancies might be on the horizon. i thought maybe the best way to start is to start with christine, who has rolled up her sleeves and looked at the past several confirmations and just give us the briefest of overview of how these last four worked, whether there were distinctive characteristics among them, or whether they were more or less the same where the nominee received some amount of critique from the opposition party, and some negative votes, but then smoothly sailed on to the court.
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whether the garland experience changes things at all. >> thank you. it's great to be back here at georgetown. when i walked in this afternoon i had this feeling of not having , done my courts reading yet so hopefully my public speaking will get easier. i actually have worked on the past six nominees to the supreme court, four of whom were confirmed. that's how i view it. we worked very hard on harriet myers' nomination before she withdrew. her hearing was scheduled and there were some really interesting moments in that. and last year, the garland nomination. so to answer one of your questions, i do think the experience of last year, which included merrick garland, but there were many other unique things about what happened with regard to the confirmation
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process, i do think that is going to have an impact on how people consider supreme court nominees going forward. it really was something that i never would have predicted. i have worked for senator leahy for more than 14 years and i think even he, the most senior senator serving in the u.s. senate, was surprised at all the different things that happened in 2016, one of which was the majority leader announcing that no consideration would be given to the president's nominee to the supreme court. so of the four that went through, there were some unpredictable moments. i wouldn't say that any supreme court process is necessarily predictable. these are real people who have interesting backgrounds. there's a lot of attention and more and more so there's a lot of money that gets involved in advocacy groups for and against.
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each senator has his or her own standard and approach to how they consider nominees to the lower courts and especially the supreme court. but senator leahy would remark that the supreme court hearings are this rare public moment where people pay attention to the supreme court in a different way. it is just the most transparent time. it's a time to make sure that the american people understand how the supreme court decisions effect their every day lives. you know, we lawyers care a great deal about the court. we read blogs every day and we know who's filing a brief, but that's not how most americans follow the third branch. so those public hearings that are coming later this month are really an important moment and in each of the four that i worked on, i was really impressed by how seriously the senators took the process and how seriously the nominees took the process of preparing for the
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public hearings, of taking a -- it very seriously, and then coming to their decision. but as you noticed with the confirmation votes, there was serious opposition for all four of the most recent confirmations , because frankly there's just been more focus from the political branches on the importance of each individual who serves on the one branch that's supposed to be above politics. so i do think that it is not a cake walk. i think each one presented its own challenges for the nominee and for the people trying to learn about what was really behind the nominee. mr. liptak: elizabeth, let me ask you about judge garland, who didn't get a hearing. maybe a two-part question. anything wrong with that? did that violate any legal or other norm? does it cast a shadow?
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should we think about judge gorsuch differently in light of what happened to judge garland? ms. wydra: thank you. before i get to those two questions, i want to thank everyone for being here and thank the sponsors for inviting me. i spent two wonderful years at georgetown as a teaching fellow, so it is great to be back. i think the answer to your first question about did what happen to chief judge garland violate constitutional norms, absolutely. i think there are important reasons, as christine said, to consider the supreme court, at least aspirationally above politics. you know, chief justice roberts has repeatedly said he doesn't consider the court to do their work as democrats and republicans, but rather as justices who surely have their ideologies, but they don't view themselves as political in the
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same way and it's detrimental to the court to view them that way. i certainly agree with that, even though sometimes it might appear as though they're acting in a political way, we don't want them to and i agree with chief justice roberts on that point. here you had almost a full year left of president obama's term. he put forth this nominee that even republican senators said is the person they would hope obama would pick, but he won't, and then he did. and merrick garland is someone who would have easily gotten bipartisan support if he had been put through the process properly. and i think that that is certainly not the way simply saying we're not going to consider this president's nominee when he has a full term left in his term, he's under the constitution, up and so the last day of his term. maybe we might have a slightly different conversation if it was a week before he was out of office, but we had an entire
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year left in his term and the important business of the supreme court to consider. you know, i thought we needed nine justices then. i still think we need nine justices. some people say liberals are going to change their mind now. no, i am not. i think we need a fully functioning supreme court. that does not mean you put anybody up there. but it is important. so the fact that the senate to me did not fulfill what i consider to be their proper advice and consent role under the constitution, after the president fulfilled his right to put forth a nominee, a really incredible nominee at that, i think both flouted constitutional norms and institutional norms that are broken down in the senate unfortunately. whether i guess that leads me to your second question, whether that casts a shadow over gorsuch, it clearly does for those in the process. i could certainly see why people would view it as a stolen seat.
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my feeling is i want to take advantage of the moment as christine said, this rare moment to talk about the supreme court, the meaning of the constitution in a moment when the american public is really paying attention more than we often do. so from my perspective, i want to engage in that fight and talk about it and not just talk about judge garland and what happened to him. the third of -- to sort of talk about this nominee and these hearings. i can say i do wish that judge garland got his chance to have a hearing, even if the republican senators wanted to vote him down. i feel like if he would have been able to have the hearing that would have been much better for the american people. and the process. mr. liptak: same question to you. were any norms violated? i take it i know your answer, but even assuming so, should it have any impact on how judge gorsuch is handled? mr. whelan: there have been some facts missing from the discussion so far.
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one of those facts is that unlike the previous four, indeed the previous six, supreme court confirmations, last year was the first time in a long time in which you had a president of one party making a nomination to a senate controlled by the opposite party. that's exactly the configuration that's going to invite maximum conflict. when you add in that that happened in an election year, when you add in that that was scalia's seat, when you add in that it threatened to transform the court, it really should come as no surprise to anyone what happened. indeed, i would argue that what happened has been baked into the process at least since 1992 when then senate judiciary committee chairman joe biden threatened exactly the same thing in a carefully prepared floor speech that he delivered i believe in june of 1992, basically saying if a vacancy were to arise, president bush should not make a nomination before the election.
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again in 2007, some 16 months before the 2008 election, chuck schumer said that absent extraordinary circumstances, no vacancy that would arise would be filled. i've got to think that that would have been the obvious option, the lead option for any senate democrats if the situation had been reversed. now, i want to distinguish between the argument elizabeth has made so far about constitutional norms and a much more expansive, aggressive clearly wrong argument that some folks have made about a supposed constitutional duty. not talking about norms, which
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can be vague and invite dispute. but there are some 350 law professors who signed a letter claiming that the constitution requires the senate to have a hearing and a timely vote on a supreme court nomination. a remarkable proposition, now i should say 350 law professors are a fraction of how many opposed senator sessions confirmation. it is notable to say how many folks do i do this and how many have made clear they do not agree with it. but to have 350 professors claim that the constitution speaks to this question is remarkable. if you look at the appointments clause of article two, section two, the president, it says, it says simply that the president shall nominate.
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and all of these officers are governed by the same clause. if you want to make an argument about what the senate's duty is here, you better be ready to apply it to all the officers. as it happens, this appointment clause says nothing about how the senate shall exercise this role in the process. and indeed, the constitution of the first plenary power of the senate -- the constitution confers plenary power of the senate for make and follow their own rules. and we know that on thousands of occasions throughout senate history, the senate has killed nominees by inaction. again, nominees subject to the same appointments clause, which includes a small number of supreme court nominees. so i think the argument that some law professors have made and are still making and at least one senator is insisting on, that the constitution imposes a duty here on senators is simply absurd. i don't know if anyone here wants to actually defend that
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argument or whether we can assume that no one here is actually going to embrace that. when it comes to norms, the senate -- the constitution recognizes that the confirmation process is inherently political. as a liberal law professor said recently, there are no rules here. things are governed by politics. to be sure there are practices that have developed over time and i think we can agree in recent decades you've seen the clash intensify. and my modest point here is you had a convergence of forces last year, including especially this senate majority held by one party when the president of the opposition party was making a nomination, and including the election year, that fully explained what happened and it really shouldn't be a surprise to anyone. now, will this cast a shadow over what happens here? look, this is a fully political process and it is proper for
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people to think, i do not like what happened politically last year, so i will try to get some payback this year. that's the nature of politics. i think this stolen seat rhetoric is irresponsible. it is -- some people have said that justice gorsuch would be an illegitimate justice. many folks are using the same rhetoric that they decried candidate trump for using. i think we ought to be careful before we descend into this rhetoric. so if you want to make the case that you think for political reasons republicans acted badly in not confirming merrick garland, it's up to you to make that argument. it is perfectly fine. i should emphasize, i respect merrick garland.
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i have never said a bad thing about him. i have deep respect for his character. one drawback is, he is a judicial liberal and would transform the court, but i'm not going to say anything bad about merrick garland, the man or the judge. that said, the republicans announced their strategy from the very beginning and i do think that judge garland would not have been nominated but for the announcement of that strategy in the first place. so i think -- frankly, once they did that, it was impossible once you adopt that strategy to walk away from it. that would have been political suicide. i think the strategy was the right one. obviously it paid off or seems to have paid off bigger than most people expected, but i think it was entirely foreseeable and i again dare say that democrats would have done exactly the same thing because this has been baked into the process now for 25 years. mr. liptak: carolyn, i see from your body language there are many things you want to respond to.
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>> i think we need to put real facts about what has happened. , theyince the hearings held hearings for supreme court nominees since 1917. to say that this was unprecedented not to give merrick garland a hearing is putting it mildly. before 1916? >> you filibustered for 10 minutes, so now i get my chance. argue that what happened this past year and the immediate announcement by senator mcconnell, that there would be no consideration of any nominee by president obama put the court on track to have its most serious damage done to its
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reputation that has happened since the bush and gore case. destructive to constitutional norms. into get into a discussion -- to have a hearing, but the fact is hearings have been held. the senate has held hearings. the cost to judge garland is great but the cost to the , andry was so much greater the statements by the republicans. you say that it worked? i find that troubling. it does really put an even more clearer fashion, e-house politicized, the republicans made the court. this was basically a seat. since when does a justice on a seat after he has passed? at which point do we say the
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court needs to have a new person to replace the one who has passed and not determine that should be a cookie-cutter replacement. thurgoodwhy and went marshall left the court, parents thomas--clarence thomas took his place. i wonder if justice kennedy retires, january 2 of 2020, will be say that is it? sorry. that is for the american public to decide jacqueline that is not how it has been done. i would say would you commit to that? >> i am happy to answer that. republican position , -- if thereso, no is a vacancy in the next election year with a republican
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senator and president, the clear response would be get moving. >> so we don't lose sight of the nominee, i am going to pivot away. clearly, there are strong views about the impact of that experience going forward. this is to be a consensus that this is a deeply politicized process. at the same time, i would like you to tell us what the criteria are that the senate should be looking at. to those include credentials, qualifications or two of the three? >> clearly credentials and qualifications. i don't think ideology in the sense of any sort of a litmus test trying to choose a supreme court justice who was want to rule a particular way. we are not trying to replicate justice scalia, nor are we trying to move the court in a different direction. i think you want to look at the body of work of the nominee and
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really ss the quality of that person's work. their legal abilities, their fair mindedness, their commitment to law and one of the nice things about judge gorsuch is that if he is confirmed, we could have a lifetime of panels where we can quote his writings, because he is so quotable. i know adam, you said you don't want candy speeches but to quote a little bit from what he has written an attribute to scalia, the greaterhaps project of scalia's career was to remind us of the differences between judges and legislators. legislators may appeal to the own moral convictions about social utility to reset the law, but the judges should do none of those things in a democratic society. as scalia put it, if you're going to be good judge, you have to resign yourself to the fact that you are not always going to like the conclusion that you reach.
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if you like them all the time, you are probably doing something wrong. that catches an ideology that everybody ought to agree that as supreme court justice should embody. if you look at the body of gorsuch is work, his work reflects that. .e is a committed texture list there are cases in which he has reached results that would be conservative. i cannot get into his head but i think he probably didn't like the results that he reached. that was where the law let him. i think he is a lot like justice scalia, for whom i can give similar examples. there are numerous instances in which judge gorsuch ruled against the government, in favor of individual defendants, in ways that perhaps, if you look at the facts might not have been
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his preferred outcome. >> can i say, you mentioned we should have a litmus test, but last year we saw both presidential candidates have a litmus test by the supreme court . it was a pretty stunning moment because normally members and presidents say there are no litmus test. here you had two people running for office who were very upfront sout their litmus test, and i'm wondering what you think about the fact that candidate trump and now president trump has said he has a litmus test when he chose the sun amid -- chose this nominee. >> let this reflect our different titles and jobs. coming from the perspective of a private practice lawyer, i think we need nine justices on the court. many of the cases that are decided by the court and that i litigate are not ones that would rise to the radar screen of anybody in the senate, and when
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i say we, i guess i mean i p i'm looking for someone who can do law. that to me is my litmus test. if you do that, in some of these more mundane legal cases, that will also lead to good results in some the bigger picture cases . i'm thinking more of cases that lawyers like me deal with and less things that president trump -- think because it comes out of whethere's questions, the nominee is an independent. the litmus test language that was a regularly repeated gives the senators important issues to explore in terms of whether and how the nominee was questioned on his positions, whether he made any commitments and i think that is something that raises
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some questions, particularly firing and yates's president trump's attacks on repeatedly on judges to ensure that that is another part of the discussion. >> christine, you seem critical of this notion that people are announcing litmus tests. are you saying they are servicing something that should he kept quiet? >> i don't know if it ever existed before because i never worked on those elections. about thelity importance of the independence of the court and i have always support his view that it isn't something you would brag about on the campaign trail on both sides. this is not a partisan point. on both sides, for the first time came out and express their litmus test to the roar of crowds. i think that is a change from
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where we have been before. i would rather not be a litmus test. i don't think that is what people should be looking for when they are looking for an independent branch of government. i was saddened to see it last year. >> i may be mistaken. i thought the litmus test have been pronounced long before, including by bill clinton and i thought by barack obama. whether or not they are announced is clear, they are applied in this selection process. is this political process that is built into the constitution. i don't think there's any way to get around that. when we talk about how should the senate act on a supreme court confirmation, i think you have seen over the years roughly two different models.
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what is the difference model, -- if you look at the thingsves all other being equal, senators on both sides would prefer the difference model because it enables them to go back to constituents and say look how reasonable a senator i am. i would've assembled that the opposing president nominated. that is why even after the 1994, youn 1993 and saw republicans roll over and
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breyerad on ginsburg and . not because they ever expected democrats to reciprocate, because they saw this in their narrow electoral self-interest. what has happened in the meantime, happen first on the democratic side. more recently on the republican side, is the political basis of both parties have driven this explore and oppose nominees based on judicial philosophy. it would've been a unimaginable to anyone who looked at how the senate republicans acted in 1993 and 1994 to think that they would have voted in significant numbers against the first hispanics up in court nominee. that happened precisely because the underlying politics have
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shifted and senators can a longer play this deference game which is largely a self-serving game which you can make regiments for the difference game as well. athink we are well past situation where senators of either party are going to be according much deference. >> maybe take the one opportunity to agree on this panel. it will happen again tomorrow. i worked in the senate as well. i worked with senator daschle. it was a very different process for lower court judges. wiest to call it the better boat , monday night people would come back. there were few battles but the transformation of the debate
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around judicial nominations has been profound in a fairly short time. i think i can share with christine, some sense of the sadness about that. it has become so political and contentious, maybe there is an important piece of the interest thenderstanding better judicial philosophy of judges and the differential model is not a perfect one, but we have gone too far perhaps in that direction. >> i think, i share the hope that we could have a better world in the senate cover mission process. i wanted to echo a little bit of what -- as a supreme court litigator, this is how i think about my justices, that appear before. that is a reason why we do not like the litmus test. ,t is not -- it might be indeed
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sure they give you a sense anyway of how that person's nominees will devote. the problem with using that for a judge, is we want a judge to be independent. , this notion them that judges, even if they have a philosophy ticket case that comes before them as it comes. the facts of that case, the arguments, the precedents that exists, and we want our judges to rule based on that, not because they guarantee devote in a certain way. i'm saying that generally about white litmus test are not something i want to encourage. we criticize clinton when she did that.
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we criticize president trump for saying over and over that he had several litmus tests. -- that is the problem with litmus -- with litmus test. the way that he or she views the constitution. i would like to see more. givens giving guests -- during hearings, particularly in this case we have the context of a president who has said i have these litmus test. george -- know that the judge gorsuch might not be willing to automatically overrule roe versus wade. scoring those two together is important. i like to have the hearing process getting two more the
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judges attitudes about the constitution. >> and i pick up on the question of judicial independence. who i thinkent values executive power judge gorsuch is an interesting choice and there are a couple of things about his record that suggest that in fact he really will be independent of the executive. one is he has serious questioned the whole concept of chevron deficits -- chevron deference. judge gorsuch has questioned the judge gorsuch has questioned the notion of deference and fiction that justice scalia agreed with at certain points in his tenure that congress intended for agencies to fill in gaps in ambiguous statutes as opposed to judges reading those statutes to mean what they say.
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he has called into question that and that limits the power of the executive. second of all, there's one case i want to talk about briefly. it's a case he ruled on called united states versus nicoles. it involved a federal law that makes sex offenders and register before they moove. -- before they move. it gave the attorney general the authority to specify the law. that is a delegation of power to the attorney general to make sweeping determinations about how the criminal code is going to govern hundreds of thousands of people. and judge gorsuch struck that down. he wrote that this statute would require the judiciary to endorse the notion that congress may effectively pass off to the prosecutor the job of defining the very crime he's responsible for enforcing. he did all of this to side with sex offenders which he might well have not wanted to do.
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when i look at his record, i see signs that give me comfort this is a judge who is going to be independent minded. >> why shouldn't we welcome in the trump era someone who might be opposed to executive power? >> i think i find this use of the chevron of jurisprudence odd because we've already seen that -- i would say from the people that trump has nominated to be the heads of his agencies that he's not interested in his agencies doing a lot, whether it's enforcing voting rights, guaranteeing the rights of transgender students or providing for clean air and clean water through the epa. the fact that gorsuch might not be deferential to particular trump actions when he's not that keen on having those agencies do their job for which they exist for doesn't give me comfort.
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what i am more interested in is he going to be an independent check when president trump, for example, hypothetically, comes up with an unconstitutional religiously discriminatary travel refugee ban. this is not good evidence that he would be willing to stand up to the president and put his name forward. even generally i think that a lot of conservatives view getting rid of the chevron doctrine as part of a plan to dismantle the state. given that progressives are more in favor of the work that has been done from the new deal forward to guarantee -- make sure that the guarantees of equal protection and equality and justice and civil rights in this country are a reality in addition to all the other social safety net aspects of health care and environmental protection, that doesn't give me a lot of comfort.
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>> i'm not following your argument. i've understood that the academic view at least has not been intensely ideological, there have been critics of chevron differance. -- chevron deference. this depends on who is running the agencies. you're going to be looking at agency action one way or another. the white house isn't going to be doing things. it's going to be through agency action. i'm not sure why you don't see judge gorsuch's skepticism of chevron as a plus. >> can i say one thing echo -- one thing? the question was about qualifications or what criteria and i think an important part of that has been judicial temperament. as long as i served senator
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-- senator leahy, they talked about judicial temperament, a portion of which has to do with are they seeking to overturn law. in that particular case that i think will be talked about a lot, the chevron deference concurrence, it is certainly something i think senators will want to explore, is he trying to dismantle an area of law that has existed for decades and that goes to whether he has the temperament they want to see in a judge, what kind of agenda does he bring when you have the president's chief of staff saying last week this nominee shares the vision of donald trump, i would imagine the people are going to ask what does that mean exactly. >> if a nominee indicated skepticism of citizens united,
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would you have the same concern about judicial temperament? that's not what judicial temperament is. it's the ability to dispassionately listen to and weigh armguments and not indulge your own policy preferences. i invite you to read the concurring opinion. this is an immigration case where the immediate consequence of the view that he's advocating is in favor of the applicants for immigration relief. beyond that what you see is not someone who is trying to impose his own policy preferences. what you see is a serious discussion of first principals of separation of powers. so the idea that this concurrence raises concerns about judicial temperament strikes me as entirely backwards. >> i'll tell you that both republican and democratic chairmen have raised judicial temperament. it was raised when sotomayor was the nominee.
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>> it's not the only definition of temperament. it strikes me as a slightly unusual one. let me see if i can clear away some underbrush. not long before justice scalia died chief justice roberts gave a talk in boston and he expressed dismay that his three most recent colleagues had gotten a lot of votes against them because they had been qualified and that's all the senate should care about, are people qualified. i think what he meant by qualified is are they able lawyers? i just want to ask the group generally, under that definition of qualified, does judge gorsuch, graduate of columbia harvard law school, doctor of legal philosophy at oxford, is he qualified in that sense? >> if that were one of the major issues to consider, we would
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have justice garland so i'd embrace it. i think that's gone by the wayside because that clearly was not what was considered by the senate last year when president obama nominated judge garland. >> so garland was qualified. you're not saying gorsuch is not unqualified, you're saying that's not the only criteria we're looking at anymore. what is the other criteria we should be looking at. >> i don't think any of us is going to say that he doesn't have an impressive resume in terms of credentials. obviously that's true. i think that what we're talking about a little bit more in the beginning of this discussion about what we're looking for in a judge in some ways comes into play. i want a judge or justice to be someone who is going to be faith ful to the law and to the constitution and not be there to pursue a particular political
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agenda. i think that's true whether it's a justice who is appointed by a democratic president or a republican president. i understand that elections have consequences so there is going to be perhaps if there's a conservative president and puts up someone who is a more conservative justice, it might not be exactly the person that i as a progressive might want to put forth, but you still, i believe, always want to make sure that particular nominee is going to follow the law and constitution. what i have been looking at and i will note that constitutional accountable center does not take positions on nominees until after the hearing. we are concerned looking at his much touted claim to be an originalist whether he is someone who is going to be as faithful to all parts of the
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constitution, including the amendments that were passed after the civil war that greatly expanded federal authority to guarantee equality and guarantee the right to vote free from discrimination based on race and of gender and then based on economic status. that's what we're looking at and i want a justice of either ideological bend, conservative, liberal, libertarian, i want someone who will do that. we want to be sure that judge gorsuch's philosophy is to follow the constitution and not just those parts that match his political agenda and that's something that holds true for either candidate. i've made a reasonable argument, ed, so don't go around pretending it's someone else's argument so you can knock it down. >> i think elizabeth's general point is one i agree with. maybe we disagree on what her
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general point is. >> very clever, ed. >> when she says we want someone we want someone who is faithful. that is quite clearly indicated. -- >> of course not. i certainly agree with that part of your point as well. so, look, under the model that senators at times use, you don't need to look at these, but it's entirely reasonable under this other model for senators to vote based on whether or not they believe the nominee has a sound judicial philosophy. that can involve at the highest
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level originalism versus the living constitution. it can involve subsidiary methodologyies within originalism. how can you fault senators from taking into account judicial philosophy. we talked about litmus tests, much of which i agree with, but in so far as a litmus test is a good test rather than a statement of a result you want in a particular case or political preferences, then it serves a useful role there. everyone has always looked to such measures, whether or not they knowledge it. >> i'm going to have this happen twice. i'm going to agree with ed again. so twice in one evening. it's pretty excellent.
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i would say that we have moved away from that deferential approach. i think that means that the senate and the senate judiciary committee particularly has to spend a lot of time with this nominee in looking into his judicial philosophy and his record, thousands of decisions in which he's participated in some way. there are a lot of very important questions and i'm just going to highlight one that i hope the senators will pursue, which is in the hobby lobby case in a concurrence in the tenth circuit decision where he talks about how understanding religious belief means that people can't be expected to have what he called complicity in the wrongdoing of others. i think it's a very important question for the senators to explore. what does that mean? and how far does that go? to what extent do people with
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religious believes -- do they have to follow the law if they believe it violates their conscious just their conscience? does that come into play around lgbtq issues, around race, public accommodations? what is the outer limit of that? i think that's a really important and potentially very frightening direction for the law to go. >> well, this is exactly -- his views there are exactly what the supreme court said going back to the thomas review board if not earlier. the basic concept is that it is the individual himself or herself who defines what his religious beliefs are. no one says religious beliefs are an absolute trump, that's religionthe freedom of act says. but in terms of whether -- how defines illicit complicity, is a sincerity test. beyond that, you don't have federal judges or bureaucrats deciding whether or not someone has an approved religious view or not. >> we've been hearing questions
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that people might like to pose to judge gorsuch. what's your experience in watching confirmation hearings whether it's possible to elicit valuable information from potential nominees? >> that's a tough question. is it possible to elicit meaningful information? >> valuable, meaningful, you decide. >> i do think that sandra day o'connor might have been the first when she was in front of the committee to basically say i'm not going to commit. on any issue. and so there is a dance. i do think the senate has to respect the fact that a future supreme court justice should not be making predictions on any given case. but what they do need to answer to is what they have done in their past. right? so i do think that many of the cases being discussed here will be explored. and so certainly you can imagine cases on the chevron deference
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case or the hobby lobby decision. and i do think that it is not like a typical interrogation if it were a trial, where you can get, you know, a yes-or-no answer. it's not a political debate, raise your hand if you believe in a full robust second amendment. it's not that kind of theater. because senators do have to understand that the person in front of you needs to not have committed on every issue. i think it's a challenge. but i do think that you can learn about how they approach it. i think a lot of the things that shay mentioned earlier i'm sure will appear in the nominee's opening statements. everyone wants to hear a future justice talk about, i don't do what i want to do, i do where the law leads me. but some senators are better than others at trying to figure out, do you have a vision, do
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you have an agenda, what are you trying to achieve with this concurrence when you already agreed in the result? i think you'll hear questions of that sort. >> ok. one line of attack i hear a lot of, when people reach out to me about judge gorsuch, is that
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>> let me address some of this. , it maywas in court surprise you. it seems the president would be favor being in business. case, answered case after
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i have not seen anything like this that has been substantial. >> we have not published our reports yet. >> we are holding ammunition. was firedcker who became a whistleblower statute. we have not heard anything that relates to the next of law. that says ifatute you are order to operate your you havet is unsafe, some kind of relief available. he did not operate his truck, he abandoned his truck. and pulling over in a way that caused the brakes to freeze up.
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to raise the whistleblower status and to micromanage every that isnd firing nothing. to look at his opinion there, you can see a very careful analysis. >> i just have to say one thing that the judge who did not agree with him said if you look in the dictionary, there is controlling the functioning of. they say this driver should not due to to lose control frostbite and not lose his job. this was a 2-1 ruling. one outike the odd because i have not read the frozen trucker case. i will say as somebody who litigates business cases before
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the court, it is not always that easy. in that respect, i somewhat question the notion that this is a reflexively pro-business courts. i think what we want in a judge who is not reflexively pro-business but is also somebody who is going to read statutes differently because the facts of a case may be sympathetic towards one side or another. i think all judges probably do not have a warm spot in their heart for business. i think many people may be sympathetic, they should be. to have an answer in the frozen trucker case. to be able to disengage and that and factor it into the equation. give a break to those that are fair treating great in the interest of my perspective and what i do for a living. made, they laws are
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are designed to protect workers and certain situations they are going to take into account various concerns worried those interests are represented in congress and by the president. we have laws where these issues are not one-sided, they have to have the best reading. i think what we want in a judge even in a very sympathetic case is not going to let that sway them. >> i want to turn to your soon, what is going to happen with the nomination? is our hs this could be defeated? >> the democrats have to figure out how they want to lose it. they are struggling with it now. whether theyis
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decide to try to filibuster, they could trigger that. they could make it so much toier for president trump fill any later vacancy. this is what i hope is taken. alternative of course is to not filibuster and let a handful of their vulnerable red state and make vote for him it seem like a filibuster threat will be in for next time there it i think they are struggling with this, looking at the statements there is a lot of dissent within the ranks. how the judge doesn't the hearing, how likable he appears, i think that will have
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a real impact on which way the democrats go. i think the challenge that their best and worst option is going down the same road is a filibuster road. >> any insights? >> it is certainly a challenge historically filibusters of the supreme court nominees are nonexistent. think there will be a 60 vote margin required. i think there will be a lengthy debate whether the democrats decide to extend the their filibuster long enough to provoke a nuclear option. i think they are wrestling with that right now. thishave network at all on nomination specifically, but what i have worked on i think it
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is too early to make that suggestion. i think right now we are looking at documents. it happens in law firms and judiciary hearings. the nominee has to fill out a questionnaire, he is probably in the process of sending that further. requestedhas additional documents that were not covered in the questionnaire. i know about this from press reports. ranking member who fill this out. the chair sent a letter to the bush residential library, they have also sent letters to attorney general sessions, in the questionnaire the nominee did not explain what he was working on when he was in the attorney general's office.
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i do not know what the endgame is, in this point in the process there is a lot on known. there is some unpredictability about how they go about this. anyone trying to game it out is going to diminish how important those are. to opposee the chance notone, though there are good responses from senators because of that. that hashe process of happened before the hearing and it is part of the debate, that will shake what it happens with the boat. do the one on one calls make a difference? realthink senators are people. i think they respond to the personality in front of them. i think that is why a few people refused to meet with merrick garland.
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>> i think senators become senators because they like to be liked. i think some of them like people as well. it is more difficult to speak once youbout someone have had a pleasant conversation, if he has held your dog or if you have met his family. i think there is some element of these that can be in favor of the nominee. i have this description of human nature, and sure it is true. through the guy you want to have a beer with. the guy you want to ski down a mountain with. think the likability question
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is something that is going to come up quite a bit in the hearing. he is somebody that people like. that is not really the point. ed, i am not sure i would support him for a supreme court justice roll or it that is not really the point. that is something people talk about a lot. i think a lot of people did not want to have a hearing for merrick garland, not just because he is one of the nicest people, i think that is not the right thing. >> i agree that likability is not the point. i think one thing you can gauge by talking to the nominee is are they a good listener, are they willing to consider what you are
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saying, are they willing to respond to questions, i think that is something that is important for lawyers who have the experience of arguing for a judge. it also does show and-mindedness independents, i think the senate is not geared just towards so and you would like to have a beer with. but is this somebody would like to have as a good judge. i think he will impress in that way but we will see. open-mindedness. >> this is a political process. hasher or not the senator that in the process himself. he is going to be factoring in how this will play publicly. can figure out the political cost of the opposition. affability is a
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significant part of it. >> there is another school of thought that if he succeeds he will replace scalia, the court will not change. the big change if there is one is if one of the three older , my lastretires question before we go to the audience are we going to have another vacancy? >> no. >> thank you. >> i would say probably not. sure what donald trump was offering ambassadorship to judge kennedy. it does seem like it is
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composed solely of kennedy clerks. >> i think the actual shortlist has other folks. >> we have covered a lot of territory, i am sure you have questions, there are microphones. >>hi, thank you for picking on me. women, some of them are concerned about our individual liberties and freedoms keeping gorsuch defended hobby lobby. this religion and privacy, how can we believe that he will be an independent justice? >> thank you for your question.
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i think that is something that needs to be addressed at the hearing. specifically to your question, two of the three tests that trump repeated over and over was being willing to overturn roe v. wade but also the religious liberty that trump said would represent christians fairly. obviously, we do not want our justices to represent anyone other than the law of the constitution. certainly people of all faith or no faith had -- have constitutional rights. that should be vindicated by this a justices. judge gorsuch is his own man, but the context in which she was nominated raises questions. that there are very
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serious questions about that that i hope are addressed at the hearing. >> i would like to follow up on that, george gorsuch has not ruled on abortion directly, he has set a few things about the casey decision that will hopefully be explored. that there is not a whent affirmation of roe in fact there was quite a lot of discussion of about that decision. narrowly, reading it it makes it less potent, it gives it a less strong constitutional foundation. i think there is an idea that the senators will explore that. i think that will be extraordinarily to see what
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happens. >> it seems like the real objection is that they do not like the litmus test. correcthis position was , i am not relying on the fact that there was a 5-4 vote for it there is that law of corporations as people. i think in the system the anority opinion is clearly textually to the religious freedom act. in that particular controversy was because people have a distorted view of that. i think that does not raise concerns about his independence
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which we should not want justices who do not adhere to reading thetion but laws neutrally and independent of political. i think that his record demonstrates he is a judge like that. so that kind of foreshadowed my question, this discussion of scaliatest reminds me of where a judge call for consideration of a litmus test. replacement and make sure his replacement would defend abortion. presume that the
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court is doing lawyers work. massive discussions of policy, that do not have constitution, the it becomes a very clear political battle. some of the people who opposed these tests is not seem to be the tradition of those who defend those decisions are and i'm curious as to what your views on the tests are? i think my view on the litmus test, it will always be the same. i cannot speak for anyone else or certainly in a way that someone said it in their own view. candidates from both parties -- i will say respect to with particular
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context of casey, part of the to an that i object characterization of us wanting i assume youst, are talking about upholding roe v. wade as opposed to strengthen it down. i want a justice to follow the constitution, and i and my and seees look at that with the abortion case we think that is protected by the constitution for a woman to choose to have an abortion. that does not mean there can be people who would advocate against it, i adventure you can say that is against the constitution. that is not a litmus test, that is just how the text points us. what someone to
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follow the constitution where i disagree with grid that is why i feel that particular way. i think that if it is a strong message to the constitution that the fourth amendment as he argued requires that. biggest factor of the wadeation has been roe v. and its continued existence, there have been a lot of other cases. will see certain cases that they object to on the other side or they maye right take more offense at what the other side proceeds as wrongdoing or it.
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if you are interested and lowering the temperature of confirmation hearings you ought to want donald trump to get three more vacancies after this one. get roe v. wade put into the dustbin of history, get rid of the political process and move along from there. seen recent days we have some kind of question about deference to the judiciary, we started to see it during the campaign with the questioning of a federal judge willing to be impartial. we have continued to see those , roberts has said to carry on that legacy of not having martial law.
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where people actually listen to judges and do what they have to do even when they disagree. even in thisis, it situation where we have a purely a nominee,light over who was not even given a chance to have a hearing. now we have another nominee who is very different in so many publics, why should the trust, even if it is one step removed, even if he could be fair and impartial, why should the public trust the judiciary because of the way the politicians in using the judiciary branch? >> i think abstracting from the particular situation is because it adheres to the constitution. you have an inevitably political , youd of selecting judges have to have people selected by that method, they often have
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fundraisers for senators. we expected to be above and beyond politics. traditionally the guarantee of been distinct from politics. at what theooked law says states. the judiciary craft is an intellectual system. rules apply to that. it wants you to move from lawyer to judge, you are engaged in a very different enterprise. there has been this collapse of understanding of the role of judges, this collapse has been abetted by politics throughout the country. it is very difficult when you have that collapse. that generalnk public will truly understand the
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judiciary as a nonpolitical branch, but they really see the politicians pushing these judiciary people. >> we could spend a whole mother how original about political is him is. judges, for most of the judiciary they have not been selected in a political way. ithink christine, add, and see a lot of different proceedings with the way the senators engage in the white house. offt of judges are coming the courts and were magistrates, there is much less politicalization. , except one result
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time every several years when puts as a vacancy, it judge who is in the normal situation. >> and think that is why people continue to have greater respect for that judiciary branch, i think it has eroded, last year it really eroded. question is a good one that the public kind of -- confidence in the third branch is a part of our democracy, your point is a very good one about making sure the american people understand the importance of it. it also expires why people were so dismayed and attacking a federal judge. >> let me follow up on that point, donald trump said some interesting things about the judges involved in a travel ban. there is a sense in which judge gorsuch was distancing himself
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from those remarks. then there was discussion about if the distance was adequate. >> i'm sure that will be explored. i think they will raise whatever questions they want. i am sure that is going to be something that will be common. >> what will you hope he gives>> ? when you have-- >> when the president nominates is criticizing judges, is that a good way to run a position. >> i think with his statements about judges, i think it is important to distinguish notcial supremacy, i do especially members of
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the executive branch and the legislative branch they engage in criticism and in do so responsibly. i do not think twitter is well-suited to the sort of criticism that is called for. i think it should have respectful consideration of the judges opinion. consideration,or they may say this is all wrong, i doubt very much in the way that it was handled was designed to be very effective. my real concerns are there. hope that judge gorsuch disable that the rulings
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should not be made with political football, judges are not beyond criticism. based that this particular judge came from mexico. >> i am not defending that. >> certainly criticizing someone's ruling is one thing, but this is they are incompetent to rule because of their ethnicity just to get so beyond what we have seen an political discourse or it that is pretty shocking. we have time for two more questions. >> my question is related to that. response to the things that ,e tweeted about judge robards discourse it said that is is heartening and demoralizing. did you feel that was actually a display of his


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